The Arbitration of Empire: Colonial-Era Disputes and Emerging Risks to European Courts presents a comparative, forward-looking analysis of how unresolved colonial-era arrangements are becoming latent legal liabilities particularly for Europe’s court systems.
It argues that the intersection of dormant imperial instruments, transnational enforcement frameworks, and unregulated third-party litigation funding (TPLF) has created a systemic vulnerability with few safeguards. While not all disputes examined in the report have entered the courtroom, each demonstrates how historical claims whether over territory, sovereignty, or restitution can be structurally exposed to procedural exploitation and commercial repackaging.
This report addresses a significant gap in existing legal and policy literature. Although there is growing scrutiny of international arbitration and litigation finance in isolation, no study has yet traced how historical grievances risk converging with speculative enforcement strategies. This analysis is the first to frame that convergence as a post-imperial risk ecosystem one shaped not only by the reactivation of colonial-era instruments but by their interaction with litigation funders, fragmented enforcement regimes, and gaps in European regulatory frameworks.
Using the Malaysia–Sulu arbitration as its anchor, the report examines four additional case studies: the UK’s agreement with Mauritius over Chagos, Venezuela’s boundary claim against Guyana, Germany’s handling of genocide reparations in Namibia, and a composite analysis of Asia’s unresolved frontiers. These cases vary widely in their procedural posture, legal strength, and political context, but all point to a shared exposure: the lack of credible, coordinated legal mechanisms for addressing colonial legacies in a manner that is both equitable and immune to manipulation. Where settlements exclude communities, where sovereign immunity blocks access to remedy, or where international courts lack jurisdiction, the risk of procedural escalation grows.
European courts, the report argues, are central to this risk. Their openness to enforcement under the New York Convention, coupled with a lack of harmonised rules for evaluating legacy claims or scrutinising TPLF, makes them prime targets for funder-led litigation. The Malaysia-Sulu case has already demonstrated the potential for forum shopping and arbitrator overreach; future cases could replicate these tactics, even without a strong legal foundation, so long as the commercial incentives are aligned.
The report concludes with a two-track policy recommendation: first, to strengthen EU-level enforcement coherence by revisiting the Brussels I exclusion of arbitration and establishing safeguards for state-facing claims rooted in pre-sovereign instruments; and second, to regulate TPLF through mandatory disclosures, licensing, fiduciary standards, and enforceable return caps. It also calls for integrating these measures into broader EU strategic priorities such as the Competitiveness Compass—to ensure that Europe’s legal infrastructure remains resilient, not exploitable. Without reform, Europe’s legal systems will remain vulnerable to the arbitration of empire not by states seeking justice, but by actors seeking profit. This report offers both a warning and a roadmap for how to prevent that future from taking hold.